The Instagram Debate: Fair Use in Art on Social Media

In probably one of the most interesting copyright debates since the musician Prince and a Pennsylvania mother went toe to toe over a YouTube posting, the artist Richard Prince, has apparently blatantly adapted Instagram postings and created works placed on display in the Frieze Gallery in New York.

The Internets have erupted with stories reporting on individual Instagram users selling their own versions of the same prints that Richard Prince sold for $90,000. And, according to reports, Prince's own Instagram account received a lot of negative commentary on the subject (which, I imagine, is just what he was after in the first place).

But does the act of an artist adapting an Instagram screenshot, enlarging it and printing it on canvas for display in a gallery, constitute infringement? Maybe, and maybe not.

It's helpful to look at the general rules of Fair Use when analyzing this case. As definied in Section 107 of the US Copyright Act, Fair Use provides guidelines that help a court to determine whether the reuse of copyrighted material may be considered "fair" as well as what types of use (including criticism, social commentary, education, news reporting, scholarship and research) are may be considered Fair Use.

One important thing to keep in mind is that Fair Use is NOT protection against an infringement suit. Rather, its guidelines provide an outline for a court to determine whether damage was suffered by the copyright holder. It also is not an absolute that, when a defendant believes he or she has each factor checked off as Fair Use in an infringement suit that the defendant will be able to prevail.

I think several items make the story very interesting:

1.) Clearly, Richard Prince created a copy of the images on Instagram and made them into prints without consent (which is, just at its base, infringement).

2.) Perhaps not so obviously, the specific collection is unique and could be construed as the artist's commentary on social media and life in today's world (perhaps weighing in favor of Fair Use).

3.) Simply posting an image to Instagram or other social media platform does not formally register copyright in that image to the user who is posting. User agreements for the platforms aside, copyright still vests with the creator, but without formal registration of the work, infringement becomes more difficult to claim.

4.) The fact that Prince sold the prints from the gallery show (clearly profiting from the venture) pushes the reuse of the original photographs out of a clear case of Fair Use (and thus begging infringement).

Probably the best article on the controversy is co-authored by a practicing copyright attorney, and it makes abundantly clear that the idea of infringement is not that entirely clear.

However, until one of the Instagram users whose photo was adapted by Richard Prince decides to take him to court over the matter, we won't have a clear decision on whether this particular reuse is Fair Use. Until then, the battle will be fought at a virtual level online and in social media.

I'll be watching closely, though. Will you?

***Addendum, July 2: Another person, whose photo was "transformed" by Richard Prince in his Instagram gallery exhibit, spoke out on the matter to the Toronto Star.

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Confused about whether the material you want to reuse in your new publication falls under Fair Use or not? Contact Gryphon Publishing Consulting for a Fair Use Analysis.

#fairuse #copyright #art #photography

Content and Social Media

Today, Facebook announced that it is partnering with six major media publishers to test publishing their content directly on Facebook. The idea: by keeping readers within the Facebook ecosystem, readers will experience faster loads for content and will no longer have to "suffer" a time lag for content loading, and readers will also be able to experience more of the material they want to see within Facebook.

The Atlantic, The New York Times, The Guardian, and National Geographic are among the notable media outlets in the test. Each new partner has a large following of subscribers in various media in their own right, and they also have their own presence on Facebook in the form of a company page where they post links to content regularly.

So why would they agree to publish some content directly to Facebook and nowhere else?

Answer: more revenue, new readers and more subscribers.

Despite a large presence in print and digital formats on their own, every media outlet is interested in gaining new readership (and profit!) by any means possible. In a sense, they are meeting new readers where they already spend a significant amount of time. In the article about the deal which published in The New York Times today, each media outlet noted that they currently gain around 10-15% new subscribers from Facebook. By publishing directly in the platform, these media outlets expect to be able to turn over new subscribers by embedding ads within the Facebook-published materials.

It comes with a few risks, however, and I'm certain each media outlet is not entirely blind to the potential issues, but it provides some food for thought nonetheless:

1.) Facebook will be asking for more "free" content from its partners down the road, especially if the campaign proves fruitful for Facebook in gaining more users as well as generating more revenue from ads.

2.) Perhaps more risky is the issue of copyright on the articles provided. Although details of the deal have not been disclosed, I'm certain that the media outlets had to relinquish some control over the rights to material published on Facebook*. But demands for more content will increase pressure on outlets to relinquish more control over their material. So each media outlet needs to ensure that they absolutely control all of the rights to the materials posted.

3.) New publishers who are courted by Facebook may not receive the same terms as those in the test group. In the case of the test group, the media outlets themselves are large enough (currently) and have enough power and presence to be able to dictate better terms with Facebook. That said, but I'm concerned that other (smaller) publishers will be so hungry for their presence to be on Facebook to "gain more eyeballs" that they may be willing to give on terms. Publishing content exclusively on Facebook could then make the ability to publish elsewhere and gain readership away from that platform at risk.

I'm not saying that publishing to social media outlets is a bad thing (it's an incredible tool for interacting with customers), but content producers need to maintain awareness of what rights they need to have in order to publish to these areas, and not compromise on good due diligence on terms before proceeding. It is extremely important for content producers to be certain of what rights they have at all times so as to reduce the risk of copyright infringement.

In the game of gaining readers, it's important to be cognizant of the balance between gain and what could potentially be lost.

If you have questions about what rights you should have before publishing content on social media outlets, contact Gryphon Publishing Consulting today for some assistance in developing your company's rights policy.

*Of course, any media outlet worth its salt will ensure that they already control all rights to material they publish online, keeping in mind the lengthy privacy policies contain some notice to users how their content may be reused.

#online #copyright #digital #Facebook #socialmedia #knowyourrights

Inspiration or Infringement: In Music?

When is a new work of art, music composition, or writing something new, and when is it considered infringement?

Most of you have probably heard of the Pharrell Williams/Alan Thicke vs. Marvin Gaye suit, or perhaps the

Sam Smith vs. Tom Petty suit.

In the case of the former, Williams and Thicke lost their case to the Gaye family, who alleged that the song "Blurred Lines" infringed on Gaye's "Got to Give it Up." In the latter, Sam Smith avoided a protracted legal battle by quietly settling the case and adding Petty as a co-writer on his song "Stay With Me."

Looking at both cases, I have to admit that I'm not entirely convinced by the similarities between the original songs and those that were purportedly infringing. I could really see judgements going either way, but in the end, I do feel that both cases were closed with reasonable conclusions.

Why?

When judges (or a jury in the Williams/Thicke vs. Gaye suit) review a case of possible infringement of a musical composition, the primary analysis is through what is called an "audience test." According to the American Bar Association, this test has an "ordinary person" listen to the works and, without looking for specific differences in them, "would be disposed to overlook them, and regard their aesthetic appeal as the same." In other words, whether a lay person could hear the similarities between the two works without first hearing differences and assume the compositions were either the same or derivatives of one another.

In the Williams/Thicke vs. Gaye case, I can hear the underlying melody and backbeat running through "Blurred Lines" that is reflective of Gaye's original work. Gaye was certainly a pioneer in music, and set a particular style for artists to come after him. But to my ear, I do not myself think that it is similar enough to be infringing. That said, when one narrows down the specific phrasing at issue, I do hear the similarities and understand where the judgement came from.

Sam Smith obviously didn't want to go through a long legal suit and so settled his case, which explains why it made barely a ripple in the news. In this case, I think he was smart to settle, as I feel this is a more cut-and-dry case of infringement. To my ear, the songs at issue are very similar in phrasing and melody, and it doesn't take much of a focus in on a particular section to hear that.

Each of these cases are very interesting, however, as they drive home the point that infringement of copyright will ultimately be decided by either a judge or a jury, and as such, are subject to opinion. It's extremely difficult to predict how a case will be decided even when specific factors are being reviewed.

In future posts, we will review some famous infringement cases in photography. But for now, the lesson to be gleaned here is to not simply assume that borrowing elements from another artist and changing others will keep you clear from an infringment suit. It's always best to ask permission before publishing rather than face the consequences and expense of a suit later.

#copyright #infringement #newworks #inspirationversusinfringement